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Summary
In a decision regarding the legality of the prosecution of a group of strikers following a road blockade, the criminal chamber of the Belgian Supreme Court has stated rather surprisingly that Article 6(4) of the European Social Charter (right to collective action) could not be directly invoked by the strikers as it lacked clarity and precision, thus requiring supplementary regulation of this right by national legislation.
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Legal background
The right to strike and to collective action is not constitutionally embedded in Belgium. It found its way into the Belgian legal order through case law and international rules. It had been widely accepted at least until now that Article 6(4) of the European Social Charter is the keystone of the right to strike and collective action in Belgium. The Belgian Council of State and other lower courts have already recognised the fact that Article 6(4) of the Charter has direct effect, and the Belgian Constitutional Court has already acknowledged it in several cases. Yet, the Belgian Supreme Court has recently reached a different position on this matter even though it recognised the existence of the right to strike as far back as 1981.
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Facts
The case involved a large collective action of the socialist trade union FGTB. A group of over 200 trade union activists had blocked a highway bridge (Pont de Cheratte) for several hours, causing significant traffic disturbance. According to the evidence, the protestors subsequently set fire to tires on the unstable bridge and the passage for emergency services was blocked. There were also incidents involving angry truck drivers, a high risk of collisions and an enormous traffic jam.
Article 406 of the Belgian Penal Code prohibits the malicious blocking/interruption of traffic. The public prosecutor prosecuted 17 members of the trade union who were identified by the police, including high-ranking trade union officers. All 17 were convicted in first instance and on appeal, leading to a request for cassation. -
Judgment
The strikers contested their convictions on four different grounds.
Firstly, the strikers invoked an argument of a procedural nature, which the Supreme Court did not follow.
Secondly, the strikers claimed that they could not be punished as perpetrators of the crime of maliciously blocking traffic as this crime could only refer to an instant action, i.e. the fact of constructing a blockade to stop traffic. They claimed to only have joined the blockade at a later time and only after traffic had already been halted. The Court did not agree with this view, as the strikers actively contributed to the mass picketing (and thus the blockade) by their mere presence.
Next, the strikers claimed that the criminal prosecution of the activists who had not actively constructed the blockade, but were merely present, violated their freedom of association under Article 11(2) of the European Convention on Human Rights, as this would be a disproportionate restriction of this freedom. The Supreme Court again disagreed and repeated that their presence at the scene was sufficient to contribute to the blockade, which significantly endangered public (traffic) safety and restricted the free traffic of persons and goods in a substantive way.
Finally, the activists claimed that a certain number of them were punished more severely because of their status as important officers of the trade union, which would violate Articles 10, 11 and 14 of the European Convention on Human Rights and the right to collective action in Articles 6(4) and G of the European Social Charter, the latter setting out the conditions for acceptable restrictions to the fundamental rights contained in the Charter in a way similar to the European Convention on Human Rights. Here the Court denied that the activists could rely on Article 6(4) of the European Social Charter to dismiss the criminal prosecution, stating: “Articles 6(4) and N [which declares the annex to the Charter applicable] of the Charter stipulate that the States Parties recognise the right to strike and may regulate it. Lacking the sufficient clarity and precision to give them direct effect, these provisions do not confer on the accused applicants a subjective right that they could assert against the criminal sanctions required of them”. -
Commentary
This decision sheds light once again on the lack of any proper legal basis for the right to strike and collective action in Belgian national law. Until now, it was taken for granted that the strongest legal basis for this right was Article 6(4) of the European Social Charter, but the Supreme Court seems to think otherwise.
Several legislative proposals have been filed before Parliament over time with a view to bringing legal clarity on this matter but all of them have failed considering the opposition between parties on the right of the political spectrum advocating for more freedom of movement and parties on the left emphasis on the furtherance of social rights through collective action.
Should we conclude from this decision that the right to strike and collective action does not have any legal basis in Belgium anymore? I do not think so. The right to strike can be inferred, at least indirectly, from other provisions of Belgian law. The freedom of association is protected by the Belgian Constitution and the European Court of Human Rights while there are several legal provisions restricting the right to strike with a view to guaranteeing the provision of certain essential services in Belgium, which presupposes its existence.
The impact of this decision should therefore be limited, especially considering that Article 6(4) of the European Social Charter can influence Belgian case law without any direct effect through the principle of conforming interpretation, which allows national judges to interpret national law in conformity with international law.
What national judges cannot do in the absence of direct effect is to discard a provision of national law because it contradicts international law but that did not seem to be the case here where the criminal offence of malicious blocking/interruption of traffic could be construed and actually, one could argue, was construed in accordance with international law.
This being said, it is interesting to note that the Supreme Court does not really explain why it considers it justified to depart from the commonly held view that Article 6(4) has direct effect, and this even though the Advocate General who assisted the Court and filed an opinion beforehand was not so categorical as the Court in recognising the lack of direct effect.
Finally, this case places emphasis on the importance of free movement inside Belgian territory with a specific criminal offence which can be actioned to restrict the right to collective action whenever it impacts the free flow of goods and persons, and this even against activists who have not set up the blockade but merely supported it by their ongoing presence. -
Comments from other jurisdictions
Bulgaria (Rusalena Angelova, Djingov, Gouginski, Kyutchukov & Velichkov): The right to strike is a fundamental right provided for in Article 50 of the Constitution of the Republic of Bulgaria and its rules on its exercise are further set out in the Law on Settlement of Collective Employment Disputes (LSCED). The Bulgarian Constitutional Court has also had the opportunity to review that right in detail in its Decision No. 14 dated 24 September 1996 in case No. 15/ 96.
In the decision of the Constitutional Court, it was found that the right to strike is a means of protecting the collective economic and social interests of employees and a constitutional guarantee that Bulgaria will develop as a democratic and social state. The right to strike as a fundamental constitutional right of citizens is irrevocable by law or another legal act. The right to strike however may be restricted by law in exceptional cases where the suspension of work creates an obvious and imminent danger to the life, safety and health of the population. Thus, the right to strike is subject to legislative restriction for certain public servants who exercise authority on behalf of the state and ensure its functioning.
Furthermore, the detailed rules on the exercise of the right to strike, contained in the LSCED, provide that strikes by employees may be either symbolic (by wearing or displaying appropriate signs, protest placards, bands, badges or other appropriate symbols without stopping work) or effective (by temporarily suspending their employment duties).
It must be noted that while the strike lasts, the workers are obliged to be on-site at the employer’s enterprise during their established working hours. Striking workers may not take any action that interferes with or creates additional difficulties for the normal conduct of activities outside their work duties. Culpable failure to do so is a breach of labour discipline for which the disciplinary penalties provided for in the Labour Code (including dismissal) are imposed, irrespective of pecuniary, administrative and criminal liability.
The above signifies that in Bulgaria the right to strike and its exercise is subject to very strict rules and upon their non-observance the strike may be deemed unlawful thus leading to negative consequences for striking employees.Croatia (Dina Vlahov Buhin, Vlahov Buhin i Šourek d.o.o. in coop. with Schoenherr): In comparison to the case at hand where there was a lack of proper legal basis for the right to strike and collective action under Belgian law, in Croatia this right is constitutionally guaranteed.
However, the right to strike can be limited by law only in order to protect the freedom and rights of other people as well as the legal order, public morality and health. Therefore, the emphasis under Croatian law would not be on recognizing the right to strike and collective action (as in the case at hand) but rather on its limitations as well as on interference in exercising the right to strike and collective action in a legitimate and necessary manner (‘proportionality’).
The Croatian courts consider the legality of the process of organizing a strike through the following stages: (i) making a decision on a strike and determining demands; (ii) strike announcement; (iii) carrying out the procedure of mediation; (iv) use of other forms of industrial action; (v) implementation of the procedure for determining the rules applicable to work assignments which must not be interrupted; (vi) compliance with industrial peace clauses; and (vii) the way of implementing the strike and its social acceptability.
Given that the right to strike in Croatia is not absolute, and taking into account the facts of the specific case i.e. questionable social acceptability, the domestic court would most probably, though by offering different reasoning, also declare the strike at issue illegal.Germany (Susanne Burkert-Vavilova and Julia Matthäus, Luther Rechtsanwaltsgesellschaft mbH): In Germany, the ECHR and the Social Charter have the status of simple federal laws only. Unlike constitutionally guaranteed fundamental rights (Grundrechte), the rights under the Social Charter cannot be asserted directly. However, when applying the law, the German courts must take into account the ECHR and the Social Charter as theses treaties also constitute ‘law and statute’ within the meaning of Article 1 III of the Constitution (Grundgesetz, ‘GG’).
Furthermore, in Germany – unlike in Belgium – the right to strike is constitutionally guaranteed. It is derived from Article 9 III GG. The basic principles and the scope of protection by Article 9 GG have been developed through the case law of the Federal Labour Court (Bundesarbeitsgericht) and the Federal Constitutional Court (Bundesverfassungsgericht). According to Article 9 III 1 GG, the right to form associations for the protection and promotion of working and economic conditions (freedom of association) is guaranteed for everyone and for all professions. The freedom of association includes the conclusion of collective agreements as well as industrial action such as strikes and lockouts as a means of reaching collective agreements. The Federal Constitutional Court determines the scope of the constitutional protection under Article 9 III 1 GG dynamically depending on the extent to which industrial action is necessary in order to establish the autonomy of collective bargaining. Hence strikes are protected to the extent that they are necessary for a functioning autonomy of collective bargaining. The protection of industrial action, however, is not limitless and finds its limitation especially in the principle of proportionality, public interest and legal order.
From a criminal law perspective, the right to strike finds its limits once criminal laws are being violated. Hence, a strike in a public traffic area is potentially punishable with severe penalty under Section 315b (1) no. 3 of the German Criminal Code (Strafgesetzbuch, ‘StGB’) – endangering road traffic. In each individual case there must be a risk to life or limb or to an object of significant value. Also, a strike may fulfil the criminal offence of coercion (Section 240 StGB). The offence of coercion is committed by anyone who unlawfully forces another person to behave in a certain way by means of violence or threat of harm. Coercion already exists if the physical presence of a person in a place prevents another person from entering or passing through that place. A strike by workers on public roads, that forces road users to discontinue their journey, is hence an act of coercion.
Workers in Germany appear to have a much stronger legal position than in Belgium with regard to their right to strike. They can invoke their constitutionally guaranteed right to strike and assert its non-observance before the Federal Constitutional Court. Apart from that, the courts are bound by law and statute and thus also by the ECHR and the Social Charter. Irrespective of the legal comfort for strikers in Germany, the case at hand would probably have turned out just the same in Germany.Subject: Unions
Parties: H. – v – P.
Court: Belgian Supreme Court (Court of Cassation)
Date: 23 March 2022
Case number: P.21.1500.F
Internet publication: https://juportal.be/content/ECLI:BE:CASS:2022:ARR.20220323.2F.4/FR?HiLi=eNpLtDKwqq4FAAZPAf4=
DOI: 10.5553/EELC/187791072022007003003
European Employment Law Cases |
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Case Reports | 2022/21 The right to collective action recognised by the European Social Charter has no direct effect says the Belgian Supreme Court (BE) |
Keywords | Unions, Juridisch, Arbeidsrecht, Europees recht (EU Recht) |
Authors | Gautier Busschaert |
DOI | 10.5553/EELC/187791072022007003003 |
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Gautier Busschaert, "2022/21 The right to collective action recognised by the European Social Charter has no direct effect says the Belgian Supreme Court (BE)", European Employment Law Cases, 3, (2022):121-123
Gautier Busschaert, "2022/21 The right to collective action recognised by the European Social Charter has no direct effect says the Belgian Supreme Court (BE)", European Employment Law Cases, 3, (2022):121-123
In a decision regarding the legality of the prosecution of a group of strikers following a road blockade, the criminal chamber of the Belgian Supreme Court has stated rather surprisingly that Article 6(4) of the European Social Charter (right to collective action) could not be directly invoked by the strikers as it lacked clarity and precision, thus requiring supplementary regulation of this right by national legislation. |